Petition for Writ of Certiorari — Louis McIntosh, aka Lou D, Petitioner v. United States

Supreme Court briefApr 24, 2023

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No. _____

IN THE

Supreme Court of the United States

____________________

LOUIS McINTOSH,

Petitioner,

against

UNITED STATES OF AMERICA,

____________________

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STEVEN Y. YUROWITZ

COUNSEL OF RECORD

NEWMAN & GREENBERG LLP

950 THIRD AVENUE – 31ST FLOOR

NEW YORK, NEW YORK 10022

TELEPHONE: 212-308-7900

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED

1. Whether a district court may enter a criminal forfeiture order outside the

time limitations set forth in Rule 32.2, Fed.R.Crim.P.?

The appellate courts are divided on this issue. The Court of Appeals below

rejected petitioner’s argument that the district court’s forfeiture order was invalid where

the government failed to submit a preliminary order of forfeiture until more than twoand-half years after sentencing, and the government also failed to comply with the

district court’s direction that it provide a formal order of forfeiture within one week of

sentencing. Compare United States v. Maddux, 37 F.4th 1170 (6th Cir. 2022) (rejecting the

decision below and concluding that Rule 32.2 was a mandatory claim processing rule

preventing forfeiture in that case); and United States v. Shakur, 691 F.3d 979 (8th Cir.

2011)(Rule 32.2’s mandates are jurisdictional, and a court lacks the “power to enter”

forfeiture once Rule 32.2’s deadlines have passed); and United States v. Martin, 662 F.3d

301 (4th Cir. 2011) (concluding that Rule 32.2’s deadlines are simply “time-related

directive[s]”).

2. Is the theft of cash from an individual sufficient to satisfy the “interstate

commerce” element of 18 U.S.C. §1951 a necessary predicate for federal

jurisdiction of what is otherwise local criminal conduct that should be

prosecuted by the individual states?

The Solicitor General candidly admitted in a prior case before this Court that:

when there's a robbery of an individual, the links [to

Commerce] are much more attenuated and there's a longer

chain of causation to get to commerce. And so in those

contexts, even within the depletion of assets theory that my

brother espouses before the Court, the courts have said, as a

normal matter, robberies of individuals just don't fall within

the Commerce Clause.

Taylor v. United States, 14-6166 (Transcript of Oral Argument, Feb, 23, 2016) at 23-24.

Despite this concession, the Second Circuit upheld petitioner’s conviction under the

depletion of assets theory, a theory that when applied to an individual effectively

eviscerates the “interstate commerce” element and raises serious Federalism concerns.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................................................. i

TABLE OF CONTENTS ................................................................................................... iii

TABLE OF AUTHORITIES ............................................................................................. iv

OPINIONS BELOW ............................................................................................................ 1

JURISDICTION .................................................................................................................... 1

CONSTITUTIONAL, STATUTORY AND FEDERAL RULE PROVISIONS ....... 2

STATEMENT ....................................................................................................................... 8

REASONS FOR GRANTING THE WRIT ................................................................... 13

CONCLUSION ................................................................................................................... 25

APPENDIX A..................................................................................................................... a-1

APPENDIX B .....................................................................................................................b-1

iii

TABLE OF AUTHORITIES

Page

Cases

Dolan v. United States, 560 U. S. 605 (2010) .................................................................. 15, 18

McIntosh v. United States, 143 S.Ct. 399 (2022).................................................................... 10

Stirone v. United States, 361 U.S. 212, 218 (1960) ................................................................ 21

United States v. Addonizio, 442 U.S. 178 (1979) ................................................................... 16

United States v. Culbertson, 435 U.S. 371, 373 (1978) .......................................................... 21

United States v. Kaufman, 2023 WL WL 1871669 (2d Cir. Feb. 10, 2023) ....................... 20

United States v. Leslie, 103 F.3d 1093, 1103 (2d Cir.1997) ................................................. 21

United States v. Lopez, 115 S. Ct. 1624 (1995) ..................................................................... 22

United States v. Maddux, 37 F.4th 1170 (6th Cir. 2022) ............................................ i, 15-20

United States v. Martin, 662 F.3d 301 (4th Cir. 2011) ................................................ i, 15, 20

United States v. McIntosh, 58 F.4th 606 (2d Cir. 2023) .............................................. 1, 18, 20

United States v. McIntosh, 2023 WL 382945 (2d Cir. Jan. 25, 2023) .............................. 1, 22

United States v. Morrison, 529 U.S. 598 (2000) ................................................................20-21

United States v. Perrotta, 313 F.3d 33 (2d Cir. 2002) ........................................................... 21

United States v. Peterson, 236 F.3d 848 (7th Cir. 2001)...................................................22-23

United States v. Shakur, 691 F.3d 979 (8th Cir. 2012) ............................................... i, 16, 20

United States v. Taylor, 20-1459 (June 21, 2022) .................................................................. 10

TABLE OF AUTHORITIES – cont’d

Page

United States v. Wang, 222 F.3d 234 (6th Cir. 2000) ........................................................... 24

Statutes and Rules

18 U.S.C. §1951..................................................................................................................... 22

Rules of Supreme Court, Rule 10(a)................................................................................... 20

Rule 32.2, Fed.R.Crim.P. ............................................................................................... passim

Other Authorities

Taylor v. United States, 14-6166 (Transcript of Oral Argument, Feb, 23, 2016) ............... ii

OPINIONS BELOW

The Amended Opinion of the United States Court of Appeals for the Second

Circuit affirming certain portions of petitioner’s judgment of conviction as well as the

district court’s authority to order forfeiture in this matter is reported as United States v.

McIntosh, 58 F.4th 606 (2d Cir. 2023), a copy of which is annexed hereto as Appendix

A. The summary order of the United States Court of Appeals for the Second Circuit

affirming in part and vacating in part petitioner’s amended judgment, reversing in part

the district court’s judgment of acquittal, and remanding for resentencing is reported as

United States v. McIntosh, 2023 WL 382945 (2d Cir. Jan. 25, 2023), a copy of which is

annexed hereto as Appendix B. Petitioner did not seek rehearing.

JURISDICTION

The judgments of the United States Court of Appeals sought to be reviewed

were entered on January 25, 2023. The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

CONSTITUTIONAL, STATUTORY AND FEDERAL RULE PROVISIONS

U.S. Constitution, Article 1, Section 8, Clause 3:

The Congress shall have power . . . To regulate Commerce with foreign Nations,

and among the several States, and with the Indian Tribes;

U.S. Constitution, Amend. X:

The powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively, or to the

people.

18 U.S.C. §1951:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the

movement of any article or commodity in commerce, by robbery or extortion or

attempts or conspires so to do, or commits or threatens physical violence to any

person or property in furtherance of a plan or purpose to do anything in violation

of this section shall be fined under this title or imprisoned not more than twenty

years, or both.

(b) As used in this section—

(1) The term “robbery” means the unlawful taking or obtaining of personal

property from the person or in the presence of another, against his will,

by means of actual or threatened force, or violence, or fear of injury,

immediate or future, to his person or property, or property in his custody

or possession, or the person or property of a relative or member of his

family or of anyone in his company at the time of the taking or obtaining.

(2) The term “extortion” means the obtaining of property from another, with

his consent, induced by wrongful use of actual or threatened force,

violence, or fear, or under color of official right.

(3) The term “commerce” means commerce within the District of Columbia,

or any Territory or Possession of the United States; all commerce between

any point in a State, Territory, Possession, or the District of Columbia and

any point outside thereof; all commerce between points within the same

State through any place outside such State; and all other commerce over

which the United States has jurisdiction.

Rule 32.2, Fed.R. Crim. P.:

Criminal Forfeiture

(a) Notice to the Defendant. A court must not enter a judgment of forfeiture in a

criminal proceeding unless the indictment or information contains notice to the

defendant that the government will seek the forfeiture of property as part of any

sentence in accordance with the applicable statute. The notice should not be designated

as a count of the indictment or information. The indictment or information need not

identify the property subject to forfeiture or specify the amount of any forfeiture money

judgment that the government seeks.

(b) Entering a Preliminary Order of Forfeiture.

(1) Forfeiture Phase of the Trial.

(A) Forfeiture Determinations. As soon as practical after a verdict or finding of guilty,

or after a plea of guilty or nolo contendere is accepted, on any count in an

indictment or information regarding which criminal forfeiture is sought, the court

must determine what property is subject to forfeiture under the applicable statute.

If the government seeks forfeiture of specific property, the court must determine

whether the government has established the requisite nexus between the property

and the offense. If the government seeks a personal money judgment, the court

must determine the amount of money that the defendant will be ordered to pay.

(B) Evidence and Hearing. The court's determination may be based on evidence

already in the record, including any written plea agreement, and on any additional

evidence or information submitted by the parties and accepted by the court as

relevant and reliable. If the forfeiture is contested, on either party's request the

court must conduct a hearing after the verdict or finding of guilty.

(2) Preliminary Order.

(A) Contents of a Specific Order. If the court finds that property is subject to

forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the

amount of any money judgment, directing the forfeiture of specific property, and

directing the forfeiture of any substitute property if the government has met the

statutory criteria. The court must enter the order without regard to any third party's

interest in the property. Determining whether a third party has such an interest

must be deferred until any third party files a claim in an ancillary proceeding under

Rule 32.2(c).

(B) Timing. Unless doing so is impractical, the court must enter the preliminary

order sufficiently in advance of sentencing to allow the parties to suggest revisions

or modifications before the order becomes final as to the defendant under Rule

32.2(b)(4).

property subject to forfeiture or calculate the total amount of the money judgment,

the court may enter a forfeiture order that:

(i) lists any identified property;

(ii) describes other property in general terms; and

(iii) states that the order will be amended under Rule 32.2(e)(1) when additional

specific property is identified or the amount of the money judgment has been

calculated.

(3) Seizing Property. The entry of a preliminary order of forfeiture authorizes the

Attorney General (or a designee) to seize the specific property subject to forfeiture;

to conduct any discovery the court considers proper in identifying, locating, or

disposing of the property; and to commence proceedings that comply with any

statutes governing third-party rights. The court may include in the order of forfeiture

conditions reasonably necessary to preserve the property's value pending any appeal.

(4) Sentence and Judgment.

(A) When Final. At sentencing—or at any time before sentencing if the defendant

consents—the preliminary forfeiture order becomes final as to the defendant. If

the order directs the defendant to forfeit specific property, it remains preliminary

as to third parties until the ancillary proceeding is concluded under Rule 32.2(c).

(B) Notice and Inclusion in the Judgment. The court must include the forfeiture when

orally announcing the sentence or must otherwise ensure that the defendant knows

of the forfeiture at sentencing. The court must also include the forfeiture order,

directly or by reference, in the judgment, but the court's failure to do so may be

corrected at any time under Rule 36.

from the forfeiture order, or from the court's failure to enter an order, begins to

run when judgment is entered. If the court later amends or declines to amend a

forfeiture order to include additional property under Rule 32.2(e), the defendant or

the government may file an appeal regarding that property under Federal Rule of

Appellate Procedure 4 (b). The time for that appeal runs from the date when the

order granting or denying the amendment becomes final.

(5) Jury Determination.

(A) Retaining the Jury. In any case tried before a jury, if the indictment or

information states that the government is seeking forfeiture, the court must

determine before the jury begins deliberating whether either party requests that the

jury be retained to determine the forfeitability of specific property if it returns a

guilty verdict.

(B) Special Verdict Form. If a party timely requests to have the jury determine

forfeiture, the government must submit a proposed Special Verdict Form listing

each property subject to forfeiture and asking the jury to determine whether the

government has established the requisite nexus between the property and the

offense committed by the defendant.

(6) Notice of the Forfeiture Order.

(A) Publishing and Sending Notice. If the court orders the forfeiture of specific

property, the government must publish notice of the order and send notice to any

person who reasonably appears to be a potential claimant with standing to contest

the forfeiture in the ancillary proceeding.

(B) Content of the Notice. The notice must describe the forfeited property, state the

times under the applicable statute when a petition contesting the forfeiture must

be filed, and state the name and contact information for the government attorney

to be served with the petition.

place as described in Supplemental Rule G(4)(a)(iii) of the Federal Rules of Civil

Procedure, and may be by any means described in Supplemental Rule G(4)(a)(iv).

Publication is unnecessary if any exception in Supplemental Rule G(4)(a)(i) applies.

(D) Means of Sending the Notice. The notice may be sent in accordance with

Supplemental Rules G(4)(b)(iii)–(v) of the Federal Rules of Civil Procedure.

(7) Interlocutory Sale. At any time before entry of a final forfeiture order, the court,

in accordance with Supplemental Rule G(7) of the Federal Rules of Civil Procedure,

may order the interlocutory sale of property alleged to be forfeitable.

(1) In General. If, as prescribed by statute, a third party files a petition asserting an

interest in the property to be forfeited, the court must conduct an ancillary

proceeding, but no ancillary proceeding is required to the extent that the forfeiture

consists of a money judgment.

(A) In the ancillary proceeding, the court may, on motion, dismiss the petition

for lack of standing, for failure to state a claim, or for any other lawful reason. For

purposes of the motion, the facts set forth in the petition are assumed to be true.

(B) After disposing of any motion filed under Rule 32.2(c)(1)(A) and before

conducting a hearing on the petition, the court may permit the parties to conduct

discovery in accordance with the Federal Rules of Civil Procedure if the court

determines that discovery is necessary or desirable to resolve factual issues. When

discovery ends, a party may move for summary judgment under Federal Rule of

Civil Procedure 56.

(2) Entering a Final Order. When the ancillary proceeding ends, the court must enter

a final order of forfeiture by amending the preliminary order as necessary to account

for any third-party rights. If no third party files a timely petition, the preliminary order

becomes the final order of forfeiture if the court finds that the defendant (or any

combination of defendants convicted in the case) had an interest in the property that

is forfeitable under the applicable statute. The defendant may not object to the entry

of the final order on the ground that the property belongs, in whole or in part, to a

codefendant or third party; nor may a third party object to the final order on the

ground that the third party had an interest in the property.

(3) Multiple Petitions. If multiple third-party petitions are filed in the same case, an

order dismissing or granting one petition is not appealable until rulings are made on

all the petitions, unless the court determines that there is no just reason for delay.

(4) Ancillary Proceeding Not Part of Sentencing. An ancillary proceeding is not part of

sentencing.

(d) Stay Pending Appeal. If a defendant appeals from a conviction or an order of

forfeiture, the court may stay the order of forfeiture on terms appropriate to ensure that

the property remains available pending appellate review. A stay does not delay the

ancillary proceeding or the determination of a third party's rights or interests. If the

court rules in favor of any third party while an appeal is pending, the court may amend

the order of forfeiture but must not transfer any property interest to a third party until

the decision on appeal becomes final, unless the defendant consents in writing or on

the record.

(e) Subsequently Located Property; Substitute Property.

(1) In General. On the government's motion, the court may at any time enter an

order of forfeiture or amend an existing order of forfeiture to include property that:

(A) is subject to forfeiture under an existing order of forfeiture but was located

and identified after that order was entered; or

(B) is substitute property that qualifies for forfeiture under an applicable statute.

(2) Procedure. If the government shows that the property is subject to forfeiture

under Rule 32.2(e)(1), the court must:

(A) enter an order forfeiting that property, or amend an existing preliminary or

final order to include it; and

(B) if a third party files a petition claiming an interest in the property, conduct an

ancillary proceeding under Rule 32.2(c).

(3) Jury Trial Limited. There is no right to a jury trial under Rule 32.2(e).

STATEMENT

Petitioner was convicted after a jury trial of, inter alia, a number of Hobbs

Act robbery related offenses all of which were alleged to have involved the use of guns.

The district court granted petitioner’s Rule 29 motion as to one charged incident (Cliff

Street) vacating a count of attempted Hobbs Act robbery (Count Five) and his

possession of a weapon in connection with that offense (Count Six). But even with the

vacatur of those counts the district court was still compelled to impose a virtual life

sentence of 720 months because the indictment charged petitioner with multiple

§924(c) offenses including an overarching §924(c) conspiracy charge.

The indictment included a forfeiture allegation advising petitioner that the

government would seek forfeiture of “all property, real and personal, that constitutes

or is derived from proceeds traceable to the commission of the offenses, including but

not limited to a sum in United States currency representing the amount of proceeds

obtained as a result of the offenses.” A40-A41.1 The only specific property, however,

identified by the government in its bill of particulars was the BMW seized from

petitioner at the time of his arrest. Doc.#83 at 3.

Prior to sentencing the government failed to submit a preliminary order of

forfeiture. At sentencing and over objection, the district court ordered petitioner to

References to “Doc#__” are to docket entries in the United States District Court for the Southern

District of New York for Case No. 7:11-cr-500 (SHS); “A__” refers to page numbers in the Appendix

filed by Petitioner in the United States Court of Appeals for the Second Circuit in Case No. 14-1908.

forfeit $75,000 and a BMW (A496), but according to the written judgment the forfeiture

amount was set at $95,000 and petitioner’s BMW. A517. The district court also

directed the government to submit an order of forfeiture within a week of the judgment

which the government never submitted. Id.

Petitioner challenged all these errors and others on his initial appeal, and the

government moved for a limited remand pursuant to the procedure set forth in United

States v. Jacobson, 15 F.3d 19 (2d Cir. 1994). On remand, and more than two-and-half

years after sentencing, the government for the first time submitted a preliminary order

of forfeiture. Doc#246. Both in the district court, and later in the Court of Appeals,

petitioner argued that the government’s forfeiture order was too late, and the

government forfeited its right to forfeiture. Both the district court and the Second

Circuit rejected the argument concluding that the requirements contained in Rule

32.2(b) were simply “time-related directives” that did not prevent a district court from

ordering forfeiture even if the deadline is missed. Instead, the district court ordered

petitioner to forfeit $75,000 albeit this time accepting petitioner’s argument that he was

entitled to a credit against the $75,000 for the value of the BMW but rejecting

petitioner’s argument that he should get the benefit of the value of the car at the time

it was seized.

After the case was sent back to the Court of Appeals, the Court vacated one of

the §924(c) counts (Count Two) because it was no longer valid after Davis, but reinstated

petitioner’s convictions for attempted Hobbs Act robbery and the corresponding

§924(c) charge predicated on that conviction, concluding that the district court erred

when it had granted petitioner’s Rule 29 motion as to those convictions. The Court of

Appeals also rejected petitioner’s claim that attempted Hobbs Act robbery cannot serve

as a valid §924(c) predicate.

Among the Hobbs Act robberies for which petitioner was convicted was the

home invasion robbery of an “individual” in Lynbrook, New York on or about

September 26, 2010, in violation of 18 U.S.C. §§1951 and 2 (the “Lynbrook robbery”)

(Count Seven) and a corresponding count (Count Eight) charging petitioner with using,

carrying, and possessing firearms in connection with the Lynbrook robbery, in violation

of 18 U.S.C. §§924(c)(1)(A)(ii), 924(c)(1)(C)(i), and 2.

After his initial appeal was decided, petitioner petitioned this Court for

certiorari arguing, inter alia, that his §924(c)conviction predicated on an attempted

Hobbs Act robbery offense was unconstitutional in light of this Court’s decision in

United States v. Taylor, ___ U.S. ___, 142 S.Ct. 2015, 213 L.Ed.2d 349 (2022), which held

that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c).

This Court granted the petition, vacated the judgment of the Court of Appeals and

remanded the case back to the Second Circuit for further consideration in light of Taylor.

See McIntosh v. United States, 143 S.Ct. 399, 214 L.Ed.2d 197 (2022). On remand from

the Court of Appeals, the Second Circuit adhered to its prior rulings with the exception

of vacating petitioner’s conviction on Count Six.

Trial commenced on August 12, 2013. The government called 25

witnesses, including victims of the various alleged robberies, law enforcement officers

who responded to the crime scenes and executed arrests and searches, cooperating

witnesses, and an expert in the field of ballistics. With respect to the Lynbrook robbery,

the principal subject of this petition, the government presented evidence through four

witnesses only two of whom touched on the interstate commerce element. Robert

Rizzatti the alleged victim of the offense and Michael Wolf a cooperating witness and

an alleged participant in the robbery.

According to Wolf, once while driving with petitioner, Wolf told petitioner about

a loan shark he knows living on Long Island that would be an easy robbery target since

“he lends money and he has a lot of money in the house that I’ve seen before.”

A239(T.397). According to Wolf, Rizzatti also operated an ice cream business, buying

ice cream from the Haagen Dazs “factory” in the Bronx and selling it to bodegas in

Brooklyn. A239 (T.398). Wolf borrowed money on two occasions from Rizzatti. On

the first occasion, Wolf borrowed $25,000 and the transaction was arranged through a

middleman. A239 (T. 399). According to Wolf he used the money to pay contractors

from Tennessee that were re-siding his log cabin. A239 (T.400). The second time,

Wolf borrowed $75,000 directly from Rizzatti. A240 (T.401). Wolf indicated that he

had subsequent dealings with Rizzatti, in which Rizzatti helped him launder money for

a friend cashing checks, at times for as much as $100,000. A240(T.403), A266 (T.505).

Wolf drove with petitioner and another individual “Julian” to Rizzatti’s Long Island

home in September 2010, and testified that he waited in the car while petitioner and

Julian carried out the robbery. A241-A245 (T.407-423).

The government also called Rizzatti to testify. According to Rizzatti he was selfemployed in the wholesale ice cream business. A167(T.111). Rizzatti indicated that in

connection with his ice cream business, he obtains goods from New York State suppliers,

including a supplier in the Bronx and another one in Richmond Hill, which he

distributes locally to mom-and-pop grocery stores. A167(T.111) (emphasis added).

Rizzatti’s understood that at some point since he started his business, the Haagen-Dazs

ice cream he purchased in the Bronx was manufactured in Woodbridge, New Jersey, a

fact he knew because “a very long time ago” which he later clarified to mean “the early

eighties,” Rizzatti had visited the plant. A167(T.111-112), A173(T.135).

According to Rizzatti, on a Sunday in September 2010 he was in his garage

polishing an antique car he owned when two individuals with their faces covered and

one of whom was carrying a pistol approached him and made him kneel. A6869(T.115-17). When asked where the money was, Rizzatti at first didn’t answer but

then said that whatever they found they could keep. Id. The robbers then proceeded

to duct tape Rizzatti’s wrists, and his mouth and they brought him into the basement

where they placed him on a workout bench, tied him to it and taped his eyes.

A169(T.119). The two assailants then rummaged through the basement, asking Rizzatti

where the money was and when he failed to answer they tasered him on the neck.

A169(T.120). Eventually, the assailants found $70,000 in cash that was stored in the

sheetrock in the ceiling, as well as a pistol. A170(T.121). After the money was found

in the ceiling, the black individual asked him where the rest of the money was and when

Rizzatti motioned that there was nothing else, the individual pulled down his pants and

tasered his genitals. A170(T.122-23). After that it got silent and Rizzatti was able to

free himself. A170(T.123). Rizzatti went to his neighbor and told him that he had been

robbed and they called the police. A171(T.127). According to Rizzatti, the source of

the stolen money was “from all my work from over the years.” A171(T.128). The court

sustained the defense objection when the government attempted through leading

questions to elicit that the stolen money would have been used for Rizzatti’s ice cream

business. A171(T.128).

On cross-examination, Rizzatti sought to deny that he was a loan shark,

indicating that he was unable to remember the terms of the loans he extended.

A173(T.131). At the same time, Rizzatti admitted that he “might have” told the

prosecutors that he charged Wolf two points per month on his loan. A176(T.148).

Moreover, Rizzatti admitted that he asked to speak to an attorney when asked by law

enforcement concerning the source of the stolen funds. A177(T.152).

REASONS FOR GRANTING THE WRIT

Rule 32.2, Fed. R. Crim. P. governs the procedures related to criminal forfeiture.

Subsection (b) captioned “Preliminary Order of Forfeiture” sets forth the requirements

that are required before a defendant can be ordered to forfeit money or property. Thus,

Rule 32.2(b)(1)(A) provides that the district court must determine what property is

forfeitable “[a]s soon as practical after a verdict.” Once such a determination is made

Rule 32.2(b)(2)(A) directs a district court to “promptly enter a preliminary order of

forfeiture setting forth the amount of any money judgment, directing the forfeiture of

specific property, and directing the forfeiture of any substitute property if the

government has met the statutory criteria.” Rule 32.2(b)(2)(B) captioned “timing”

elaborates on the promptness requirement directing that “[u]nless doing so is

impractical, the court must enter the preliminary order sufficiently in advance of sentencing

to allow the parties to suggest revisions or modifications before the order becomes final

as to the defendant under Rule 32.2(b)(4).” (emphasis added).

Finally, Rule

32.2(b)(4)(A) provides that unless consented to by the defendant “the preliminary

forfeiture order becomes final as to the defendant” at sentencing, and pursuant to Rule

32.2(b)(4)(B) "[t]he court must include the forfeiture when orally announcing the

sentence or must otherwise ensure that the defendant knows of the forfeiture," and

"must also include the forfeiture order, directly or by reference, in the judgment." Id.

The government conceded below that it failed to adhere to the requirements

contained in Rule 32.2(b). It never filed a preliminary order of forfeiture. Doc#272 at

16. And, even after sentencing when the district court gave the government a week to

submit a final order of forfeiture it failed to do so, only getting around to submitting

such an order two-and half years after sentencing, and after petitioner appealed claiming

that the district court’s actions with respect to forfeiture were riddled with error.

In Dolan v. United States, 560 U.S. 605 (2010), this Court described three types of

statutory deadlines: 1) a “jurisdictional” deadline, the passage of which “prevents the

court from permitting or taking the action to which the statute attached the deadline.

The prohibition is absolute. The parties cannot waive it, nor can a court extend that

deadline for equitable reasons.”; 2) a “claims-processing rule[]” which does not limit a

court's jurisdiction, rather these rules “regulate the timing of motions or claims brought

before the court” the benefit of which can be forfeited; and 3) “time-related directives”

that are “legally enforceable but does not deprive a judge or other public official of the

power to take the action to which the deadline applies if the deadline is missed.” 560

U.S. at 610. In Dolan, five justices of this Court concluded that the time-limits set forth

in the restitution statute (i.e., the MVRA) was a time-related directive, and a district

court’s failure to order restitution prior to the 90-day deadline did not prevent it from

later ordering restitution.

A clear circuit split exists concerning the failure to adhere to the requirements

contained within Rule 32.2(b) relating to forfeiture. The Second Circuit below and the

Fourth Circuit in Martin, 662 F.3d 301 (4th Cir. 2011), held that the timing requirements

set forth in Rule 32.2(b) are no different from the statutory deadline contained in the

MVRA and as to which this Court in Dolan ruled was simply a “time-related directive.”

By contrast, the Sixth Circuit in United States v. Maddux, 37 F.4th 1170 (6th Cir. 2022)

recently concluded that Rule 32.2(b) was a claim processing rule and denied the

government the ability to seek forfeiture where, as here, it only filed a preliminary order

of forfeiture years after sentencing. The Eighth Circuit in United States v. Shakur, 691

F.3d 979 (8th Cir. 2012) went even further finding that even though the defendant

received notice at the end of his sentencing hearing and again in the written judgment

that the court would impose forfeiture because there was no preliminary order of

forfeiture prior to sentencing and no inclusion of that order in the judgment, the district

court’s attempt to include a preliminary order of forfeiture 83 days after the judgment

issued was invalid. “[T]he court was without power to enter that order, and . . . [t]here

can be no criminal forfeiture in this case.” 691 F.3d at 989. In the view of the Eighth

Circuit, Rule 32.2 is jurisdictional. Indeed, Shakur cited this Court’s decision in United

States v. Addonizio, 442 U.S. 178, 189 & n. 16, (1979) that “‘once a sentence has been

imposed, the trial judge's authority to modify it is’ limited to Rule 35, which imposes a

time period that ‘is jurisdictional and may not be extended.’” Shakur, 691 F.3d at 989

and n. 6.

According to the Second Circuit below, “the considerations that pertained to the

restitution order in Dolan similarly apply to the Rule 32.2(b) deadline for forfeiture.” 58

F.4th at 610. Those considerations consist of the fact that 1) Rule 32.2 “does not

specify a consequence for noncompliance with its timing provisions”; 2) according to

the Advisory Committee notes the purpose of a preliminary order of forfeiture is to

“give the parties time ‘to advise the court of omissions or errors in the order before it

becomes final” and there “is no mention of an interest in giving defendants certainty as

to the amounts forfeited before sentencing”; 3) “because forfeited funds frequently go

to the victims of the crime” disallowing forfeiture due to a missed deadline “would tend

to harm innocent people who are not responsible for the oversight”; 4) “interpreting

the deadline rigidly” would “disproportionately benefit defendants”; and 5) a defendant

concerned about delay “can remind the district court of the preliminary order

requirement any time before sentencing.” McIntosh, 58 F.4th at 610-611.

As the Sixth Circuit observed in Maddux, in rejecting McIntosh, the Second

Circuit’s reasoning is not persuasive. Instead, Rule 32.2 is more properly considered a

mandatory claims-processing rule (Maddux) or a jurisdictional rule (Shakur) and the

government forfeited its ability to seek forfeiture when it failed to adhere to those

deadlines.

Thus, Maddux reasoned that “Rule 32.2’s text, context, and purpose squarely

place it in Dolan’s second category, as a mandatory claims processing rule.”

37 F.4th

at 1177. First, Rule 32.2(b) repeatedly uses the term “must.” See Fed. R. Crim. P.

32.2(b)(1)(A), (b)(2)(A), (b)(2)(B), (b)(4)(B). Calling the Rule’s requirements “time

related directives,” however, “effectively erases its mandatory language.” Maddux, 37

F.4th at 1177. True, as noted by the Second Circuit, the Rule contains no specific

consequence for a missed deadline, “[b]ut whatever, if anything, the text of Rule 32.2(b)

lacks, its structure makes up the difference—a structure that dovetails with other rules

at giving sentences finality.” Id. Thus, the rule provides in a subsection captioned

“when final” that “at sentencing” “any preliminary forfeiture order ‘becomes final as to

the defendant.” Id. (quoting Rule 32.2(b)(4)(A)). “Final means final, so Rule 32.2(b)

envisions only one bite at the apple.” Maddux, 37 F.4th at 1177. Moreover, the Rule

“squarely contemplates a ‘court’s failure to enter a[] [preliminary forfeiture] order’ by

sentencing — a failure it directs ‘the government’ to appeal once ‘judgment is entered.’”

Id. (original emphasis and alterations). All of this makes Rule 32.2 unlike the restitution

statute which specifically contemplates the need for “not wrap[ping] up restitution

under a single bow at sentencing.” Id.

Second, Maddux found that “it’s hard to imagine a better example” of a “claim

processing rule than Rule 32.2” since the “rule regulates every stage of the criminal

forfeiture process” from indictment through judgment and thereafter litigating thirdparty interests. Maddux, 37 F.4th at 1178. “This A-to-Z- roadmap for criminal

forfeiture . . . is the quintessential claims-processing rule.” Id.

Third, Maddux rejected the Second Circuit’s view that Rule 32.2 was not designed

to give “defendants certainty as to the amounts forfeited before sentencing.” Unlike

the MVRA which this Court in Dolan found “seeks speed primarily to help the victims

of crime and secondarily to help the defendant” (Dolan, 560 U.S. at 613), when it comes

to forfeiture, “Rule 32.2(b) flips that script—it arms defendants with procedures to

correct preliminary forfeiture orders before sentencing.” Maddux, 37 F.4th at 1178. By

culminating forfeiture at sentencing, “defendants can be sure no more forfeiture awaits

them—just like they can be sure that no other new punishment does.” Maddux, 37

F.4th at 1178.

Maddux likewise rejected the Second Circuit’s argument that treating Rule 32.2

as a mandatory claim processing rule would harm victims. First, the government’s

timely appeal of a Rule 32.2(b) error can be corrected by a government appeal. Second,

the purposes of forfeiture and restitution are distinct. Forfeiture “is to punish the

defendant by stripping him of unlawful gains; restitution’s purpose is distinct–to restore

the victim’s loss.” Maddux, 37 F.4th at 1179. Because of the former purpose, forfeited

property “ordinarily ends up in the hands of the government, not victims.” Id. And

the fact that certain officials have the discretion to transfer forfeited property to

victims” only serves to “attenuate[] any potential impact on victims, who thus only might

receive forfeited property.” Id. (original emphasis). Indeed, in light of Dolan’s rule

permitting restitution after the 90-day period, it is hard to see how a victim will be

harmed by the failure to timely order forfeiture since the district court can still direct

the defendant to make restitution.

Based on the foregoing analysis, and its reasoning that both McIntosh and Martin

would undo the 14-day deadline called for by Rule 35(a), Maddux agreed with Shakur

that “where a district court entered neither preliminary not final forfeiture orders

‘before entry of final judgment and passage of the fourteen-day corrections period

granted by Rule 35” an error that occurred here, the government should be denied

forfeiture. Maddux, 37 F.4th at 1180.

Maddux’s only departure with Shakur was whether Rule 32.2 is even more than a

“claims-processing rule” but in fact jurisdictional. Maddux, 37 F.4th at 1180 n. 7. In

the view of Shakur, forfeiture is no different from other aspects of a criminal sentence

which under Rule 35 cannot be corrected more than 14 days after sentencing. See also

Haberman v. United States, 590 Fed. Appx. 320, 323 n. 9 (5th Cir. 2014) (“the failure to

follow proper forfeiture procedures can violate due process principles”).

The issue presented by this appeal is a recurring one. See, e.g., United States v.

Kaufman, 2023 WL 1871669, *6 (2d Cir. 2023) (2d Cir. Feb. 10, 2023) (“The untimeliness

of the district court's entry of a preliminary forfeiture order, however, does not render

the forfeiture invalid”)(citing McIntosh). This Court should grant certiorari to resolve the

split. Rules of Supreme Court, Rule 10(a).

II.

This Court has previously recognized the fundamental proposition that:

The Constitution requires a distinction between what is truly

national and what is truly local. In recognizing this fact we

preserve one of the few principles that has been consistent

since the Clause was adopted. The regulation and

punishment of intrastate violence that is not directed at the

instrumentalities, channels, or goods involved in interstate

commerce has always been the province of the States.

Indeed, we can think of no better example of the police

power, which the Founders denied the National

Government and reposed in the States, than the suppression

of violent crime and vindication of its victims.

United States v. Morrison, 529 U.S. 598, 618 (2000) (citations omitted). Moreover, “in a

Hobbs Act prosecution, charge and proof “that interstate commerce is affected is

critical since the Federal Government's jurisdiction of this crime rests only on that

interference. Stirone v. United States, 361 U.S. 212, 218 (1960). And “[t]here is nothing

more crucial, yet so strikingly obvious, as the need to prove the jurisdictional element

of a crime.” United States v. Leslie, 103 F.3d 1093, 1103 (2d Cir.1997) (reversing

conviction where government failed to prove interstate commerce element of money

laundering offense).

True, “the statutory language sweeps within it all persons who have 'in any way

or degree affect[ed] commerce . . . by robbery or extortion” (United States v. Culbertson,

435 U.S. 371, 373 (1978)) but a standard that would “expand the reach of the Hobbs

Act to include every robbery or extortion committed” would be invalid. See, e.g., United

States v. Perrotta, 313 F.3d 33, 38 (2d Cir. 2002). As a result, the Court in Perrotta

concluded that the fact that a robbery victim was employed by a company that did

“business in interstate commerce, without more, stretch[ed] the Hobbs Act too far."

313 F.3d at 38.

Likewise, courts have rejected the theory that a theft of currency satisfies the

commerce element because United States currency almost inevitably travels interstate

from the U.S. Mint where it is produced. Such a theory would be “inappropriate” as it

would mean that any robbery of cash could automatically be prosecuted as a Hobbs

Act in all but the two places (Texas and D.C.) where such currency is printed. United

States v. Peterson, 236 F.3d 848, 853 (7th Cir. 2001). An untenable result since robbery

is part of the general police power, an area where "the States possess primary authority."

United States v. Lopez, 115 S. Ct. 1624, 1631 n.3 (1995).

Here the Court of Appeals upheld petitioner’s conviction based on its conclusion

that only the “possibility or potential” for a “very slight effect on interstate commerce”

was needed. United States v. McIntosh, 2023 WL 382945 at *2. Thus, despite the fact that

there was no evidence that any of the money stolen from Rizzatti’s house would be

used in his ice cream business — the district court sustained an objection when the

government tried to elicit such evidence at trial A171(T.128) — because only “

possibility or potential” of a “very slight effect” on interstate commerce was necessary,

the Second Circuit deemed it sufficient that Rizzatti had in the past purchased ice cream

from an in-state supplier that purchased ice cream from an out of state supplier. But

the fact that an individual earned money from activity that at some point involved

interstate commerce says nothing of the money’s use or lack of it in the future and

stretches the depletion of assets theory beyond elasticity. Moreover, such reasoning is

inconsistent with the plain language of the statute (18 U.S.C. §1951(b)(3)) which

requires that the defendant “obstructs, delays, or affects commerce” (i.e., conduct which

is prospective).

Alternatively, the Court of Appeals found such a “possibility or potential”

because in the past Rizzatti had lent money to an in-state borrower who in turn used

that money to pay an out-of-state contractor. But money will always eventually travel

at some point in interstate commerce. Indeed, it would be ironic, if not perplexing, to

find the interstate commerce element satisfied because it “depleted” Rizzatti’s

loansharking “business” when he denied even being a loan shark. A172(T.131) (“Q.

What is the nature of your work? A. Wholesale ice cream. Q. But you're a loan shark as

well, am I correct, sir? A. No, sir”).

In any event, absent evidence that Rizzatti in some way solicited or knowingly

serviced out-of-state customers, the fact that a borrower of money happened to use the

money in interstate commerce is insufficient. Accepting this logic would mean that if

a robbery victim had previously used his savings to make intrastate purchases at the

local corner grocery whose proprietor spent those funds out-of-state, the commerce

element would be satisfied since as a result of the robbery the victim’s future to ability

to engage in such transactions will have been hampered. Effectively it would mean any

robbery can be prosecuted under the Hobbs Act because inevitably the money any

individual spends will eventually travel at some point down the line out of state.

Before the government can even hope to satisfy the depletion of assets theory

other circuits have required the government to present evidence that the money at issue

would have been used by the victim in interstate commerce. Peterson, 236 F.3d at 854

(to meet the depletion of assets theory, the government must present evidence that the

business is “actively engaged in interstate commerce or customarily purchases in interstate

commerce”) (emphasis added).

Similarly, in United States v. Wang, 222 F.3d 234 (6th Cir. 2000), the Sixth Circuit

vacated a Hobbs Act robbery conviction where cash was stolen from the home of a

couple, even though they owned a restaurant business and some of the cash constituted

that day’s cash receipts from the restaurant. “[W]here, as here, the criminal act is

directed at a private citizen, the connection to interstate commerce is much more

attenuated.” 222 F.3d at 238. In reversing the defendant’s conviction, the Sixth Circuit

found that taking the cash from the home had at most nothing more than “an absolute

de minimis effect” on commerce since there was no proof that the victim’s “closed the

restaurant, that they were unable to order any further goods from out of state.” This

same can be said for this case. Even assuming that cash found behind sheetrock in

Rizzatti’s home had anything to do with either his ice cream business or the loan shark

business he denied being involved in.

In sum, it is time for this Court to put the brakes on the government’s neverending desire to expand the breadth of the Hobbs Act. Robbery is at its core a state

offense and that is where petitioner should have been prosecuted. Indeed, to the extent

that Hobbs Act can be viewed as covering petitioner’s conduct it is unconstitutional

under the 10th Amendment since there is simply no limiting principle that would

prevent the Hobbs Act from being used to prosecute any state robbery offense. The

effect of the Court of Appeal’s decision here is that unless the robbery victim lives in a

cave and grows their own food, money robbed from him will be subject to federal

prosecution since at some point such money will have a connection to interstate

commerce.

The Court should grant certiorari to resolve this important constitutional issue.

CONCLUSION

Because the decision of the Second Circuit on at least two separate points of law

critical to the outcome of the appeal conflicts with decisions of either this Court or

other circuit courts, petitioner respectfully requests that the Petition for Writ of

Certiorari be granted.

RESPECTFULLY SUBMITTED

STEVEN Y. YUROWITZ, ESQ.

950 Third Avenue -- 31st Floor

New York, New York 10022

Tel: (212) 308-7900

Attorney for Petitioner

Louis McIntosh

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.